Criminal Mischief

Criminal mischief is simply damage to another person's property--think of it as a vandalism charge that typically erupts between neighbors or former lovers (or both). The charge has varying degrees of severity, depending upon the amount of damage done, ranging from a second degree misdemeanor (max 60 days jail, 6 months probation), all the way up to felony charges (over $1000 damage constitutes a felony). But damage alone does not constitute the crime of criminal mischief, if that were the case every auto accident would be criminal. In addition to property damage, criminal mischief requires that the damage be inflicted both "willfully and maliciously" to "another's" property.

By including ``willfully and maliciously'' as elements of criminal mischief, the Florida legislature meant that the mischief must be intentional and without justification or excuse. As such, the legislature did not intend to make every mischievous act a crime. The definition of the crime itself implies that not all acts of mischief will rise to a criminal level, so long as the accused can show a justification or excuse. Most cops and prosecutors do not understand this aspect of the law, so for those interested in how this works, let's take an example straight out of Florida's court system.

In J.R.S. v. State, 569 So. 2d 1323 (Fla. 1st DCA 1990), the juvenile defendant ran away from home, but came back later to a locked home. He was hungry, and in order to enter the house, J.R.S. had to "jimmy" the rear door, causing significant damage to the door. He was convicted of criminal mischief, but the appellate court overturned the conviction because J.R.S. had a reasonable justification or excuse for prying open and damaging the door to his locked home where he resided so that he could get in to eat. In other words, there was no malicious intent to damage his parents property, there was only an intent to get inside and eat. A common theme in criminal mischief cases is the court's concern over the exact reason, or excuse, for the defendants' actions and its effect upon the malice element of criminal mischief..

Another defense to a criminal mischief charge involves whether or not the prosecution can prove that the act was done with "malice". Now, it may be true that most criminal charges involve some sort of evil intent (or malice), but this is particularly important in criminal mischief charges in cases which can be interpreted as "accidents" rather than intentional acts. For an analysis of whether or not an accident may cross the line to become a criminal mischief charge, check out my article "Can an Accident Be a Crime?".

When an accused has a good faith excuse or justification for the mischief, a valid defense exists. And, this action does not have to be technically prudent. In many cases, the incident may be negligent––but without malice––there's no crime (negligence can cause criminal liability, but for other types of crimes which we don't have the time to get into here).

And, let's not forget that the State must prove the defendant actually caused the damage alleged. In Campbell v. State, the police were called to the scene of a burglary in progress at an apartment. 143 So. 3d 1183 (Fla. 3rd DCA 2014). When the police arrived, they noticed damage to both the front door, and the front door frame (both of these damaged items constituted Campbell's criminal mischief charge). The police found Campbell in the apartment, and he told them that he came in through the front door. The police assumed Campbell had gained entry into the apartment by causing said damage, but the appeals court overturned the conviction because "there was no testimony, however, as to the condition of the door before Campbell entered the apartment nor was there direct evidence that Campbell caused the damage. While the circumstantial evidence against Campbell certainly suggests guilt, the State failed to present substantial, competent evidence from which the jury could exclude any reasonable hypothesis of innocence." id. at 1185.

Of course, the best thing to do if you find yourself accused of criminal mischief is to call me, John Guidry, at any time, and well discuss your options. Thanks.

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